Prostitution laws: 30 years of Conservative failure

Frances M. Shaver is a professor in the Department of Sociology and Anthropology at Concordia University; She has submitted a brief on the subject to the Commons Committee examining Bill C-36.

Bill C-36, the federal government's response to the Supreme Court ruling striking down Canada's prostitution laws, is the Conservatives' third chance to respond appropriately to concerns about the safety and security of those working in the sex industry. It looks like they are going to strike out.

Their first chance was almost 30 years ago, in response to the Special Committee on Pornography and Prostitution.

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The legislation enacted by the Conservatives failed to act on the committee's recommendation to allow for two or three people to work together and instead simply replaced the soliciting offence with "communicating" (the section struck down in the latest Supreme Court ruling). My research indicates it also failed to introduce changes to enforcement patterns: they continued to be gender, class, and sector biased.

Strike One

Their second chance was 20 years later in response to the House of Commons Subcommittee on Solicitation Laws. They missed the mark again. Their report paid too much attention to the sexual exploitation of children and human trafficking and too little to the way the laws and their enforcement push sex workers into situations that put their health and safety at risk and leave them open to stigma, discrimination and violence.

Strike two

Bill C-36 is their third chance and so far – based on the provisions in the Bill – it looks like they will strike out. The bill proposes to criminalize communication in public for the purpose of prostitution, the purchase of sexual services, material benefit, procuring, and the advertisement of sexual services. In addition, it effectively prohibits indoor sex work.

Laws should not be about morality. In a pluralistic society such as ours we must separate personal moral values and opinions from the legal and policy positions we take. We have accomplished this with legislation governing birth control, abortion, homosexuality, and gay marriage. Why not with sex work?

Many Canadians have already accomplished this separation of their personal moral values and legal opinions with respect to Bill C-36. For example, ordained ministers and laity of various faith groups and denominations made it clear that – even though they "uphold marriage as an ideal and as the normative place for sexual relations" and have "great concerns about the commodification of sex" – they cannot support Bill C-36. And, according to the latest Angus Reid Poll, Canadian women and men – who continue to hold significantly divergent views on the buying and selling of sexual services – do not extend these differences to their overall opinions of Bill C-36. Almost half (47 per cent) say they oppose the proposed law, more than a third (35 per cent) support it, and 18 per cent say they aren't sure.

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These two examples demonstrate that some members of the Canadian public can separate their personal values from their legal opinions. Will the Conservative government be able to do the same?

Last week, they get another chance after listening to the views of individuals and groups who appeared before the House of Commons Standing Committee on Justice and Human Rights.

Decriminalizing the sale and purchase of sexual services would be preferable to Bill C-36 since it avoids the negative effects of one person or group imposing a moral position on others. It would also be more consistent with the evidence regarding the wide variety of individuals involved as both buyers and sellers of sexual services, most of whom are neither "perverts" nor "victims".

Decriminalization would strengthen the relationships among sex workers, between sex workers and clients, and between sex workers and third parties; all serving to enhance the safety and security of the work environment. We would also be better off using laws that directly target violence and exploitation (e.g., assault, criminal harassment, forcible confinement) than broad prohibitions formulated on misrepresentations and prejudice.

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